Case :-cv-00-apg-vcf Document Filed 0/0/ Page of 0 OPP SIGAL CHATTAH, ESQ. Nevada Bar No.: LAW OFFICES OF SIGAL CHATTAH S. Rainbow Blvd. #0 Las Vegas, Nevada Tel: (0 0-00 Fax:(0 - Attorney for Plaintiff Rick Rizzolo DISTRICT COURT CLARK COUNTY NEVADA ***** FREDRICK RIZZOLO a/k/a RICK RIZZOLO vs. Plaintiff, KIRK HENRY, an individual, AMY HENRY, an individual, DOE individuals I through XX, and ROE CORPORATIONS I through XX, Defendants. Case No.: :-cv-00-lrh-vcf OPPOSITION TO MOTION TO DISMISS COMES NOW, Plaintiff, FREDRICK RIZZOLO a/k/a RICK RIZZOLO, by and through his attorney of record, SIGAL CHATTAH, ESQ., of the LAW OFFICES OF SIGAL CHATTAH, who hereby files this Opposition to Defendant s motion to dismiss. 0 --
Case :-cv-00-apg-vcf Document Filed 0/0/ Page of 0 0 ARGUMENT STATEMENT OF FACTS On October, 00, Kirk and Amy Henry filed a lawsuit arising out of injuries sustained during a September 0, 00 incident which was styled Kirk and Amy Henry v. The Power Company, Inc. et al., Clark County District Court for the State of Nevada, Case No.: A00. Rick Rizzolo was individually named as a Defendant in said lawsuit on June, 00. On August, 00, The Power Company, Inc. and Rick Rizzolo entered into the Settlement Agreement with Kirk and Amy Henry in Case No.: A00. In the Settlement Agreement, The Power Company, Inc. and Rick Rizzolo agreed to pay $0,000,000 to Kirk and Amy Henry with $,000,000 due immediately and the remainder to be paid from the proceeds of the sale of the Crazy Horse Too at the time of the closing, consistent with the terms of the foregoing guilty plea agreements. The Settlement Agreement further provided that [a]lthough it is anticipated that the NINE-MILLION DOLLARS ($,000,000 will be paid from the proceeds of the sale, the obligation to make said payment upon the closing is not contingent upon the realization of net proceeds from the sale sufficient to make the NINE-MILLION DOLLARS ($,000,000 payment. Id. The Settlement Agreement also provided that the issuance of said draft is not, nor is it to be construed as an admission of liability on the part of any release but is a compromise, settlement, accord and satisfaction, and discharge of loss, damages, claims, actions, causes of action, suits, and liability which are each and all uncertain, doubtful and disputed. Id. Two months prior to entry of the Settlement Agreement on Case No.: A00, on June, 00, The Power Company, Inc., entered into a guilty plea agreement with the United States --
Case :-cv-00-apg-vcf Document Filed 0/0/ Page of 0 0 government for the crime of conspiracy to participate in an enterprise engaged in racketeering activity in violation of Title, United States Code, Section (d. United States v. The Power Company, Inc., USDC Case No. :0:-cr-00. As part of its guilty plea, The Power Company, Inc. agreed to make restitution in the amount of $0,000,000 to Kirk and Amy Henry with $,000,000 due immediately upon the entry of the Power Company s guilty plea and the remainder due and to be paid from the proceeds of the sale of the Crazy Horse Too at the time of the closing. Id. Based on the abovementioned guilty plea agreements and the Settlement Agreement, District Court Judge Philip M. Pro entered the Judgment and Commitment Order against Rick Rizzolo on January, 00. USDC Case No. :0:-cr-00. Rick Rizzolo s Judgment and Commitment Order ordered that he pay restitution to Kirk Henry in the amount of $0,000,000. The Judgment and Commitment Order further provides that [t]he restitution amount is payment jointly and severally with the Co-Defendant Power Co. Inc. Id. On September, 00, the Henrys entered into a Petition and Settlement Agreement, Stipulation for Entry of Order of Forfeiture and Order. Said Settlement Agreement would have placed the Henrys at the top of the pay-out list had there been a sale of the asset in accordance with the Parties contemplated intent and the $0 million US Dollar price tag. In short, Kirk and Amy Henry agreed to abandon their interest in the sale of the Crazy Horse Too to the United States Government, allowing the United States Government to forfeit the property, in consideration that Kirk and Amy Henry would be the first to receive any proceeds of the sale. On May, 00, the United States government filed and distributed in the criminal case a proposed First Amended Order of Forfeiture, reducing Kirk and Amy Henry --
Case :-cv-00-apg-vcf Document Filed 0/0/ Page of 0 0 from first position to fifth position. Kirk and Amy Henry objected to the First Amended Order of Forfeiture. On June, 00, the proposed First Amended Order of Forfeiture was entered in the criminal case, as an order acknowledging the Henrys abandonment of their interest in the Crazy Horse Too. On October, 00, a Second Amended Order of Forfeiture was entered in the criminal case acknowledging the abandonment of the Henrys interest in the Crazy Horse Too and their fifth position as payment from the proceeds of the sale of the Crazy Horse Too. Furthermore, due to the fact that the Federal Marshals refused to make the mortgage payments on the seized property (the building wherein The Crazy Horse Too was located, on February, 0, District Court Judge Philip M. Pro ordered that Canico Capital Group, LLC conduct a non-judicial foreclosure sale of the Crazy Horse Too. On July, 0, the Crazy Horse Too was sold to Canico Capital Group, LLC at the nonjudicial foreclosure sale for $ million. Kirk and Amy Henry did not receive any proceeds from the sale of the Crazy Horse Too. On September, 0, District Court Judge Timothy Williams in the case of Kirk and Amy Henry v. The Power Company, Inc. et al., Clark County District Court for the State of Nevada, CCDC Case No. A00, entered a Judgment on behalf of Kirk and Amy Henry against Rick Rizzolo and The Power Company, Inc. in the amount of $,000,000. The judgment in Case No. A00 provided the following On July, 00, Plaintiffs entered into a Settlement Agreement with Defendant Rick Rizzolo in the amount of $0 million. Defendant Rick Rizzolo paid $ million upon execution of the Settlement Agreement. Defendant Rick Rizzolo was obligated to pay the remaining $ million upon the closing of the sale of the Crazy Horse Too. The Crazy Horse Too was sold by foreclosure sale on July, 0, --
Case :-cv-00-apg-vcf Document Filed 0/0/ Page of 0 0 and did not net the proceeds required to satisfy the $,000,000 judgment against Defendants. As such, Defendant Rick Rizzolo is obligated to make the remaining payment of the settlement to Plaintiffs. Since the initial $ million payment referenced above, Defendant Rick Rizzolo has failed to make any further payments to Plaintiffs under the Settlement Agreement. In light of the foregoing, Defendant Rick Rizzolo is now in breach of the Settlement Agreement and Plaintiffs are entitled to a judgment in their favor for all remaining amounts due under the Settlement Agreement. Id. LEGAL STANDARD When reviewing dismissal of a complaint, we accept the allegations of the complaint as true and construe them in the light most favorable to the plaintiff. Love v. United States, F.d, (th Cir.. Dismissal of a complaint is improper unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Id., quoting Gibson v. United States, F.d, (th Cir., cert. denied, U.S. 0 (. A. RIZZOLO IS NOT SUBSTANTIVELY BARRED BY ISSUE PRECLUSION IN THIS MATTER A prior judgment does not extinguish a plaintiff's claim to the extent that the plaintiff was unable to rely on a certain theory of the case or to seek a certain remedy or form of relief in the first action because of the limitations on the subject matter jurisdiction of the courts or restrictions on their authority to entertain multiple theories or demands for multiple remedies or forms of relief in a single action, and the plaintiff desires in the second action to rely on that theory or to seek that remedy or form of relief. Victa v. Merle Norman Cosmetics, Inc., Cal. App. th,, Cal. Rptr. d (. --
Case :-cv-00-apg-vcf Document Filed 0/0/ Page of 0 0 In Nevada, issue preclusion requires that ( an issue be identical, ( the initial ruling was final and on the merits, ( the party against whom the judgment is asserted was a party or in privity with a party in the prior case, and ( the issue was actually and necessarily litigated. Issue preclusion is based upon the sound public policy of limiting litigation by preventing a party who had one full and fair opportunity to litigate an issue from again drawing it into controversy. This doctrine ends litigation and lends stability to judgments, thus inspiring confidence in the judicial system. The party seeking to assert a judgment against another has the burden of proving the preclusive effect of the judgment. [Emphasis added]. Bower v. Harrah's Laughlin, Inc., P.d 0 (00. The 00 Lawsuit Had Nothing To Do With The Settlement Agreement Entered in 00 and Was Never Actually and Necessarily Litigated. The most important matter that this Court needs to be apprised of is that the 00 case was a Personal Injury Case. It had nothing to do with the Settlement Agreement. The causes of action alleged in the 00 Case that Defendants rely on to substantiate an Issue Preclusion claim include the following:. Assault and Battery. Intentional Infliction of Emotional Distress. Conversion. Loss of Consortium The issue of Impossibility of the Settlement Agreement was never litigated. In order for the Affirmative Defenses to have been litigated in the Settlement Agreement, Judge William s had to have decided whether those issues were litigated on the merits. No such Arguments were presented, heard or made. Judge William s summarily decided on a Motion to Reduce the Settlement to a Judgment. The merits of the Judgment or the Settlement were never decided on, which is the impetus of the Appeal in the State Court. --
Case :-cv-00-apg-vcf Document Filed 0/0/ Page of 0 0 Ultimately, what is left for this Court to determine regarding the substantive nature of issue preclusion is whether Mr. Rizzolo had the opportunity to litigate the merits of the Settlement Agreement and the impossibility of the performance thereof in September, 0. The hearing in September, 0 was not to determine the merits of the Settlement Agreement and whether its performance was probable or whether there were defenses to it. The Motion was to Reduce it to Judgment regardless of the merits behind it; and Judge Williams, ultimately reduced it to Judgment, precluding Rizzolo from ever litigating the merits of it, and therefore substantively issue preclusion does not attach. B. PLAINTIFF S IMPOSSIBILITY DEFENSE IS NOT PROCEDURALLY BARRED BY THE DOCTRINE OF ISSUE PRECLUSION BECAUSE AN APPEAL IS PENDING AS TO ITS VALIDITY. A verdict and judgment cannot be pleaded in bar, nor do they operate by way of estoppel whilst the case in which they are rendered is pending on appeal. Sherman v. Dilley ( Nev. In Sherman the court observed that had defendant's counsel shown to the trial court that a former decree, relied upon as conclusively settling an issue material also in the second proceeding, was on appeal at the time the second case was tried, and objected to the introduction of the record in that case upon that ground, it would doubtless not have been admitted. Id. In addition to citing Sherman v. Dilly ( Nev. the court in Ketchum v. Thatcher, Mo. App., ( also cited with approval; Woodbury v. Bowman ( Cal., ( where a suit is pending in the supreme court on appeal, the judgment below is suspended for all purposes, and it is not evidence upon the question at issue even between the parties. and Stone v. Spillman ( Texas, (holding that answer setting up that the defendant held the --
Case :-cv-00-apg-vcf Document Filed 0/0/ Page of 0 property under a will, and that a judgment against his right so to hold it had been appealed from, presented a meritorious defense that the appeal suspended all proceedings until it was decided. The September, 0, Judgment in state Court had not even contemplated whether the Settlement Agreement was viable or not. Judge William s simply reduced the Judgment to The Nevada state trial court denied Plaintiff s impossibility defense; however, Plaintiff has appealed the decision. See Henry v. Rizzolo et al., Supreme Court Case No.. Thus, the decision cannot be given preclusive effect while appeal is pending. CONCLUSION It is clear that Plaintiff is not barred by Issue Preclusion both on a substantive argument on the merits of the case and on the procedural bar that this matter cannot be denied while an appeal is pending. Therefore Defendants Motion to Dismiss must be denied. Dated this th day of February, 0. LAW OFFICES OF SIGAL CHATTAH 0 /S/ Chattah SIGAL CHATTAH, ESQ. Nevada Bar No.: LAW OFFICES OF SIGAL CHATTAH S. Rainbow Blvd. #0 Las Vegas, Nevada Attorney for Plaintiff Rick Rizzolo --
Case :-cv-00-apg-vcf Document Filed 0/0/ Page of CERTIFICATE OF SERVICE I, the undersigned, hereby certify that service of the foregoing was served on the th day of February,0 via the Court s CM/ECF electronic filing system addressed to all parties on the e-service list. /s/ Chattah An Employee of the Law Offices of Sigal Chattah 0 0 --